“This isn’t how it works”: Trump’s performative lawsuit against Facebook, Twitter is a futile stunt

Trump claims social media companies are “government” actors. Attorneys say his lawsuit is a “pathetic joke”

By Igor Derysh

Managing Editor

Published July 7, 2021 3:30PM (EDT)

Former U.S. President Donald Trump speaks during a press conference at the Trump National Golf Club Bedminster on July 07, 2021 in Bedminster, New Jersey. (Michael M. Santiago/Getty Images)
Former U.S. President Donald Trump speaks during a press conference at the Trump National Golf Club Bedminster on July 07, 2021 in Bedminster, New Jersey. (Michael M. Santiago/Getty Images)

Donald Trump announced multiple lawsuits against social media companies on Wednesday, but his dubious claim that tech giants are "government" actors violating his First Amendment rights means that the complaints are destined to fall apart under scrutiny, much like his numerous election lawsuits.

Trump's legal team filed three separate lawsuits against Facebook, TwitterYouTube and their chief executives on Wednesday, accusing the social media giants of violating his First Amendment rights. As a constitutional refresher, the First Amendment only protects speech from actions of government, not decisions by private companies. Trump and his allies have also not presented any evidence that the platforms are biased against conservatives.

Trump has frequently sued or threatened to sue countless entities in his decades-long career in business and politics. Just months earlier, Trump and his allies filed dozens of election challenges that were rejected by courts across the country. Trump used those failed lawsuits to raise hundreds of millions of dollars, but spent just a small fraction of that money on legal costs while investing far more on additional fundraising. The baseless lawsuit against social media companies for alleged violation his constitutional rights appears to be the latest attention-grabbing ploy, inevitably to be rejected by the courts based on extensive precedent. Indeed, the defeated ex-president wasted no time fundraising off the lawsuit minutes after the announcement.

Trump claimed during a news conference at his New Jersey golf club that his "class-action" suit aims to weaken or strip the companies' Section 230 protections, which give firms legal immunity for user-generated content on their platforms if they moderate speech. He also demanded the "prompt" restoration of his social media accounts and punitive damages against the companies that he claimed could total in the "trillions of dollars."

Attorneys quickly pointed out that "this isn't how it works."

"You don't announce a class-action lawsuit," tweeted attorney Janet Johnson, noting that a class needs to be certified, and cannot simply be declared by an individual. "He can't be the lead plaintiff in a class that doesn't exist. A class of presidents? This is just repeating nonsense."

Trump was flanked at the news conference by others banned from social media platforms for violating their policies who have joined his lawsuits, but he predicted that "thousands" of others would sign on. Trump's lawsuit is backed by the America First Policy Institute, a nonprofit launched by former Trump officials to push his policies. Trump also touted his legal team full of "tobacco lawyers," who he said "really wanted" to represent him in the case.

"This lawsuit is a pathetic joke," wrote attorney Bradley Moss.

"Just a sad, little man," tweeted Rep. Adam Kinzinger, R-Ill.

Trump's argument effectively boils down to completely unsupported claims that social media companies somehow qualify as "government" actors and that Section 230 is unconstitutional.

"While the social media companies are officially private entities, in recent years they have ceased to be private with the enactment and their historical use of Section 230, which profoundly protects them from liability," Trump said Wednesday. "Once they got Section 230, they're not private companies anymore in a lot of views. No other companies in our country's history have had protection like this. It's in effect a massive government subsidy."

Legal experts roundly rejected this argument, as have the courts on numerous previous occasions.

"The First Amendment does *not" apply to non-governmental actors," tweeted Steve Vladeck, a constitutional law expert at the University of Texas School of Law. "Full stop."

Trump went on to claim that the social media companies have been "co-opted" by the government to become the "enforcers of illegal, unconstitutional censorship at the highest level." He argued that Congress, by holding hearings with social media executives, has "coerced" and "bullied" them into censoring conservatives.

Attorney John Coale, who is representing Trump in the case, dubiously argued at the news conference that only the Supreme Court can decide what constitutes hate speech and "misinformation."

"We're going to prove that they are government actors, therefore the First Amendment does apply," he claimed, prompting attorneys on Twitter to point out that court precedent has long established that social media companies are not state actors when they ban people.

Trump and Coale both touted the fact that they chose the U.S. District Court for the Southern District of Florida to file the case, even though Facebook's terms of service require any legal action against them to be filed in federal court in Northern California, where the company is based.

"We think we're in the right area," Coale said, referring to the district-shopping that landed the lawsuit in South Florida.

Cole also claimed that Trump's ban from the platforms violated court precedent on "prior restraint," which prevents legal action before an act occurs. This appears nonsensical, since the social media companies banned Trump after he violated their policies on inciting violence, following the Jan. 6 Capitol riot. In fact, should the lawsuit move forward, Trump could be forced to give sworn testimony on the Capitol riot during the discovery process, suggesting that his team may even expect the lawsuits to be dismissed.

Former Florida Attorney General Pam Bondi, who is not part of the legal team, also spoke at the news conference to argue that Facebook is a government actor because emails released by the government show that CEO Mark Zuckerberg had been in contact with Dr. Anthony Fauci about the coronavirus. Bondi claimed this amounted to exchanging "trade secrets" and "collusion," which she claimed meant "they are not immune anymore."

Bondi backed up her claims by citing a $50 million lawsuit filed by former Democratic presidential candidate Tulsi Gabbard against Google for violating her First Amendment rights. She failed to mention that Gabbard's lawsuit was quickly dismissed because she failed to show how Google's regulation of its own platform was "in any way equivalent to governmental regulation."

Trump has made a career of suing or threatening to sue his enemies, but has only occasionally followed through and has won many cases when he did. The former president and his allies have also spent years complaining about Section 230, but their calls to eliminate or reform the law have gone nowhere except into fundraising appeals. Trump even signed an executive order aimed at punishing online platforms, which was revoked by President Joe Biden in May.

More than anything else, Trump appears angry that his social media presence has quickly faded after he was banned from major platforms following the Capitol riot. Though his statements are still circulated on social media platforms, by his supporters, an analysis by The New York Times found that engagement has dramatically fallen off since he was banned.

The social media companies named in the lawsuit have not commented. A former Facebook official who is still close to the company told The Daily Beast the complaint was just a "desperate fundraising appeal disguised as a lawsuit."

By Igor Derysh

Igor Derysh is Salon's managing editor. His work has also appeared in the Los Angeles Times, Chicago Tribune, Boston Herald and Baltimore Sun.

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Donald Trump Facebook First Amendment Free Speech John Coale Pam Bondi Politics Reporting Social Media Twitter